Today the Plaintiffs, SAF, and CGF filed a motion for summary judgment in Peña v. Cid. For those who just want to read the argument you'll want to read the Memorandum of Points and Authorities (http://www.hoffmang.com/firearms/pena/MSJ-2009-09-02/14-24.pdf) here or in bold below. This will be heard with DOJ's motion to dismiss on October 2, 2009 at 10AM in Sacramento Federal Court. We will obviously be filing an opposition to DOJ's Motion to Dismiss (http://www.hoffmang.com/firearms/pena/Points&Authorities-Motion-to-Dismiss-2009-07-06.pdf) shortly.

3 Rimfire ammunition, which is fired when struck on its rim by the gun’s firing pin, is
primarily used in the smallest calibers. For technical reasons, chamber load indicators are not
feasible for rimfire ammunition.the Ruger MkIII has a LCI. But the original LCI design was defective in that a sharp blow to the LCI, such as dropping it, could cause an AD/ND. The new design is spring loaded to prevent impact energy from causing an AD/ND.

madmike

09-02-2009, 5:00 PM

So well written, even I understood it... Is there a "round of applause" smiley? 'Cause there should be, just for thing like this.

-madmike.

hoffmang

09-02-2009, 5:15 PM

Minor point I see in the "statement of undisputed facts"

the Ruger MkIII has a LCI. But the original LCI design was defective in that a sharp blow to the LCI, such as dropping it, could cause an AD/ND. The new design is spring loaded to prevent impact energy from causing an AD/ND.

Well, that's not really an error. The Legislature does not require LCI's on rimfire semiautomatic pistols. The statement above is just to help an unfamiliar court (if they are such) understand the jargon.

-Gene

8-Ball

09-02-2009, 6:16 PM

Excellent read...!!!

hard not to shake your head in disbelief over the ridiculousness of what he is arguing against...

yellowfin

09-02-2009, 7:03 PM

So are they going to take the cowardly bulls*** way out of ruling on this one like they did Sykes?

Dr. Peter Venkman

09-02-2009, 7:04 PM

GO IVE!

Meplat

09-02-2009, 7:09 PM

Great argument! But it all hangs on incorporation, does it not?

Shotgun Man

09-02-2009, 7:24 PM

I'm reading the MSJ. Nice read so far, but it doesn't hurt to point out spots that confused me:

In unsuccessfully defending its blanket handgun ban, the District of Columbia argued that it could unilaterally determine which arms were too dangerous to be allowed ordinary citizens, and that handguns as a class of weapons failed to meet its criteria. This argument was rejected
both by the D.C. Circuit and the Supreme Court.

This sentence suggests that handguns fail to meet DC's criteria with respect to determining which are arms are too dangerous. It is backwards. Handguns indeed meet the criteria of DC for banning.

California’s legislature, operating in a pre-Heller environment, approached the handgun issue backwards from a constitutional, post-Heller perspective. The legislature sought to declare almost all handguns “unsafe” for failing to conform to its design preferences, or for the manufacturer’s inability or unwillingness to pay for and participate in the state’s regulatory scheme. Consciously, the state sought to “drive” the market towards its preferred outcomes. But Heller stands for the proposition that it is the regulatory environment that must accommodate

itself to the choices made by the lawful, constitutionally-protected market for arms, and not the other way around.

The above-bolded passage makes little sense on first read. Was it meant to have said:

"California’s legislature, operating in a pre-Heller environment, approached the handgun issue backwards when viewed from a constitutional, post-Heller perspective."

The original text is susceptible to mean that that the legislature approached the issue of handgun control with a constitutional, post-Heller perspective, i.e., the legislature was visionary.

Also, is the court going to put off everything like what happened in our CCW Sykes case?

jmlivingston

09-02-2009, 7:32 PM

Huh, I thought the submission fee for the handgun test was $2,000 not $200. Guess I just learned something new!

jmlivingston

09-02-2009, 7:38 PM

I love this!

Defendant’s handgun rostering program also violates basic principles of equal protection, in that it arbitrarily makes distinctions between otherwise identical firearms, inherently making arbitrary distinctions among the people who would possess them, and bars some classes of people from possessing handguns that are perfectly permissible to others. These practices cannot survive Fourteenth Amendment scrutiny.

hoffmang

09-02-2009, 7:38 PM

Great argument! But it all hangs on incorporation, does it not?

Interestingly, not necessarily. From the P&A:

There is little question that Defendant, as a state actor, is bound by Second Amendment rights by operation of the Fourteenth Amendment. As of this writing, the question of the Second Amendment’s incorporation is one of first impression before this Court, though it is squarely raised in several cases pending before the Ninth Circuit and the Supreme Court. While it cannot be taken for granted that the higher courts will opine on the matter any time soon, helpfully, the State of California has filed an amicus brief with the Supreme Court arguing that the Second Amendment is, indeed, incorporated and urging the Court to grant certiorari to clarify that fact. Br. of State of California, Supreme Court Nos. 08-1497, 08-1521. A comprehensive argument for incorporation appears in Plaintiffs’ Motion for Summary Judgment, Sykes v. McGinness, E.D. Cal. 09-01235, at pp. 9-14. As the parties are apparently in agreement on this point, it does not require further elucidation here.

And people say Mr. Brown is not on our side... :43:

-Gene

elrcastor

09-02-2009, 7:42 PM

:thumbsup:

Maestro Pistolero

09-02-2009, 8:09 PM

Great argument! But it all hangs on incorporation, does it not?
I don't think so, because as Gene has pointed out, the Attorney General (defendant) has acknowledged incorporation and has urged the SCOTUS to do the same. The defendant is not arguing against it so it is undisputed in this case. I don't know if the justices can or will raise it themselves.

xxdabroxx

09-03-2009, 9:25 AM

:2guns: then we just need to get rid of the one in 30 and 10 day wait, at least for people who already own firearms.

WooooHoooo! Go CGF, donation inbound soon.

JoeC

09-03-2009, 9:39 AM

I was reading through the paper posted by Hoffmang and all I can say is good grief! No wonder the state is broke. They probably spend all the money on keeping a host of people employed just to keep track of all the inconsistencies in the stupid gun laws.

Flopper

09-03-2009, 10:37 AM

I was reading through the paper posted by Hoffmang and all I can say is good grief! No wonder the state is broke. They probably spend all the money on keeping a host of people employed just to keep track of all the inconsistencies in the stupid gun laws.

I doubt it. They've shown time and again that they don't know, understand, or care about the law.

The good news is that this blatant disregard for the law is actually starting to help us (I can't wait to see the fallout in Santa Clara County!).

blackberg

09-03-2009, 10:43 AM

And people say Mr. Brown is not on our side... :43:

-Gene

WOW,
what more evidence does one need? :cool:
-bb

ps. ididnt mean wow to come out in caps, it just came out that way, so I left it, it was meant to be :D

JoeC

09-03-2009, 1:56 PM

I doubt it. They've shown time and again that they don't know, understand, or care about the law.

The good news is that this blatant disregard for the law is actually starting to help us (I can't wait to see the fallout in Santa Clara County!).

Just because it doesn't work doesn't mean they don't still spend money on it. Just look at the current state of affairs. :p

yellowfin

09-03-2009, 3:18 PM

Did Sykes mention the JB brief?

hoffmang

09-03-2009, 10:02 PM

Did Sykes mention the JB brief?

In Sykes we're suing the sheriff and counties. They aren't on the record supporting incorporation. It was still briefly mentioned in the argument for incorporation though.

-Gene

7x57

09-03-2009, 10:31 PM

GO IVE!

And Roy, and the rest of the company. :thumbsup:

I should start calling Roy "case law guy." Of course Ivan is at the top of the ticket, but at least I might get a chance to say it to Roy....

7x57

jdberger

09-03-2009, 10:37 PM

Excellent.....

Racefiend

09-03-2009, 11:10 PM

Maybe it's because I'm a sarcastic bastard, but I loved this line:
This gun might not appear on the state’s list
of approved handguns, but according to the Supreme Court, it appears in the Second Amendment.

:smilielol5:

hoffmang

09-03-2009, 11:25 PM

I should start calling Roy "case law guy." Of course Ivan is at the top of the ticket, but at least I might get a chance to say it to Roy....

We have an amazing "roster" of plaintiffs in this case. Roy is a real pleasure to work with.

-Gene

Liberty1

09-04-2009, 12:03 AM

Gura, Kilmer, AND Davis! Now that is a team to support! Another great read!

lioneaglegriffin

09-04-2009, 12:12 PM

Gura, Kilmer, AND Davis! Now that is a team to support! Another great read!

the 2A-Team.

curtisfong

09-04-2009, 12:36 PM

the 2A-Team.

And they have more than mini-14s

PolishMike

09-04-2009, 12:52 PM

How long are they gonna delay this for bull**** reasons?

lioneaglegriffin

09-04-2009, 1:00 PM

How long are they gonna delay this for bull**** reasons?

as long as they can, thats strategy delay and evade the enemy so you can build your strength or sap theirs/strech their resources. of course the opposite is happening in this case so its more of a Borg "resistance is futile" situation. :43:

loather

09-04-2009, 1:07 PM

To be honest, I'm not sure the delays are *all* bad. The delay in the Sykes case, waiting on the Nordyke en banc hearing, I think is fuel for the fire on our side.

If we get held up on this case for the same reason, the outcome will likely have the same effect.

That is, of course, saying the en banc hearing goes in our favor. Frankly, I'd be surprised if it didn't. I have faith that people like Gene will slowly but surely help us win our rights back.

I can see the roster dying and shall-issue CCW by the end of the year. Let's all keep our fingers crossed and keep the donations coming!

ivanimal

09-04-2009, 1:31 PM

And Roy, and the rest of the company. :thumbsup:

I should start calling Roy "case law guy." Of course Ivan is at the top of the ticket, but at least I might get a chance to say it to Roy....

7x57

I am sure we will meet someday. Like minded people have a way of doing that. Thank you Gene for all this info, I cant wait to see the 2A dream team in action. So much goes on behind the scene its mind boggling.

Please if you haven't donated to the cause, do it now. No amount too small no amount will go unappreciated. We can stand together like this and win.

My name may be on the case but its all of ours to win. I just happened to be in the way when Gene was lookin!:43:

ilbob

09-04-2009, 2:06 PM

Do MSJs ever get approved in a case like this?

It seems like there are plenty of iffy things out there surrounding the case that would make most judges unwilling to sign off on it.

hoffmang

09-04-2009, 8:51 PM

Do MSJs ever get approved in a case like this?

It seems like there are plenty of iffy things out there surrounding the case that would make most judges unwilling to sign off on it.

Heller was an MSJ just like this. Had a similar lawyer involved as well :43:

-Gene

KylaGWolf

09-04-2009, 10:37 PM

Gene thanks for posting another wonderful read!

Geo

09-04-2009, 11:09 PM

I can see the roster dying and shall-issue CCW by the end of the year. Let's all keep our fingers crossed and keep the donations coming!

Guess again... the Roster may die by the end of this decade... but shall-issue CCW in CA is many years off (if ever).

hoffmang

09-04-2009, 11:22 PM

Guess again... the Roster may die by the end of this decade... but shall-issue CCW in CA is many years off (if ever).

I think (http://wiki.calgunsfoundation.org/index.php/Sykes_v._McGinness) you are incorrect (http://wiki.calgunsfoundation.org/index.php/Palmer_v._District_of_Columbia). Shall issue carry permits in California are 24 to 60 months worst case.

-Gene

CalNRA

09-04-2009, 11:27 PM

I think (http://wiki.calgunsfoundation.org/index.php/Sykes_v._McGinness) you are incorrect (http://wiki.calgunsfoundation.org/index.php/Palmer_v._District_of_Columbia). Shall issue carry permits in California are 24 to 60 months worst case.

-Gene

:party:

Must...donate...more....

Geo

09-05-2009, 8:30 AM

I think (http://wiki.calgunsfoundation.org/index.php/Sykes_v._McGinness) you are incorrect (http://wiki.calgunsfoundation.org/index.php/Palmer_v._District_of_Columbia). Shall issue carry permits in California are 24 to 60 months worst case.

-Gene

Your sincerity, conviction, and experience means I'm sending another $100 to the CGF in order to help you prove your point (and disprove mine).

Thanks!!!

hoffmang

09-05-2009, 10:44 AM

Your sincerity, conviction, and experience means I'm sending another $100 to the CGF in order to help you prove your point (and disprove mine).